16

‐ 2323

‐ ag

Hernandez v. Sessions



# United States Court of Appeals

**for the Second Circuit**

A UGUST TERM 2017

No. 16

‐ 2323

‐ ag

M ARLENY H ERNANDEZ

,

Petitioner

,

v.

J EFFERSON B. S ESSIONS III, United States Attorney General,

Respondent

.

A RGUED : N OVEMBER 30, 2017

D ECIDED : F EBRUARY 28, 2018

Before: J ACOBS

, R AGGI

, and D RONEY

, Circuit Judges

.

Marleny Hernandez petitions for review of a precedential decision of the

Board of Immigration Appeals (“BIA”) finding her ineligible for asylum under

the Immigration and Nationality Act (“INA”) on the ground that she provided

“material support” to a terrorist organization, notwithstanding that she acted

under duress. See 8 U.S.C. §§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I),

ll82(a)(3)(B)(iv)(VI). A 2014 Summary Order of this Court identified no error in

the BIA’s conclusion that Hernandez provided material support to a terrorist

organization, but the Order remanded for the BIA to determine in the first

instance whether the so

‐ called “material support bar,” which makes no explicit

mention of duress, nevertheless has an implied duress exception that might

exempt Hernandez. See Hernandez v. Holder, 579 F. App ʹ x 12, 15 (2d Cir.2 2014). The principal question presented by this petition is whether the agency’s

determination on remand that the material support bar contains no such

exception is entitled to deference under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). We conclude that Chevron

deference is warranted and join several other circuits in holding that the material

support bar does not except aliens who acted under duress. We also reject the

petitioner’s argument that aliens who are rendered ineligible for relief from

removal by the material support bar have a due process right to some means of

obtaining an exemption based on duress, other than the currently

‐ available

procedure for obtaining a discretionary waiver from the Department of State or

the Department of Homeland Security. See 8 U.S.C. § 1182(d)(3)(B)(i).

Accordingly, we deny the petition.

Judge Droney concurs in the opinion of the Court and files a concurring

opinion.

G REGORY S ILBERT ( with Kevin Meade and

Melanie Conroy on the brief ), Weil, Gotshal

& Manges LLP, New York, NY and Boston,

MA; Anne Pilsbury and Heather Yvonne

Axford, Central American Legal

Assistance, Brooklyn, NY, for Petitioner

.

J EFFREY L. M ENKIN

, Senior Counsel for

National Security, Office of Immigration

Litigation ( with Chad A. Readler, Acting

Assistant Attorney General, and Ethan B.

Kanter, Deputy Chief, on the brief ), United

States Department of Justice, Washington,

D.C., for Respondent

.3 D ENNIS J ACOBS

, Circuit Judge :

Petitioner Marleny Hernandez, a native and citizen of Colombia, seeks

review of a June 9, 2016 published decision of the Board of Immigration Appeals

(“BIA”) finding her ineligible for asylum on the ground that she provided

“material support” to a terrorist organization, notwithstanding that she acted

under duress. See Matter of M

‐ H

‐ Z

‐ , 26 I. & N. Dec. 757 (B.I.A. 2016).

The Immigration and Nationality Act (“INA”) deems ineligible for asylum

any alien who has “engaged in a terrorist activity.” 8 U.S.C. §§ 1158(b)(2)(A)(v),

1182(a)(3)(B)(i)(I). In a provision known as the “material support bar,” the INA

defines “[e]ngag[ing] in [a] terrorist activity” to include committing an act that

“the actor knows, or reasonably should know, affords material support” to a

terrorist organization. Id. § 1182(a)(3)(B)(iv)(VI). A 2014 Summary Order of

this court identified no error in the BIA’s conclusion that Hernandez provided

material support to a terrorist organization by providing the Revolutionary

Armed Forces of Colombia $100 packages of foodstuffs every three months for

more than two years. See Hernandez v. Holder, 579 F. App ʹ x 12, 15 (2d Cir.

2014). But the Order remanded the matter for the BIA to determine in the first

instance whether the material support bar, which makes no explicit mention of

duress, nevertheless has an implied duress exception that might exempt

Hernandez. See id. (citing Ay v. Holder, 743 F.3d 317, 320 (2d Cir. 2014)

(explaining that the material support bar is “silent on the question” of whether “a

duress exception is implicit in its terms”)). The agency decision resulting from

that remand is the subject of the petition before us.

The principal question presented by the petition is whether the agency’s

determination that the material support bar contains no implied duress exception

is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). We conclude that Chevron deference is

warranted and join several other circuits in holding that the material support bar

does not except aliens, like Hernandez, who acted under duress. 1 We also reject

1 While this opinion discusses the material support bar in the context of

Hernandez’s claim for asylum

, the bar

‐‐ and the interpretation of it discussed in4 Hernandez’s argument that aliens who are rendered ineligible for relief from

removal by the material support bar have a due process right to some means of

obtaining an exemption based on duress, other than the currently available

procedure for obtaining a discretionary waiver from the Department of State or

the Department of Homeland Security

‐‐ a waiver that Hernandez sought but did

not receive. See 8 U.S.C. § 1182(d)(3)(B)(i). Accordingly, we deny the petition.

The facts and procedural course of this case are set out in the BIA’s

published decision and in our 2014 Summary Order. We review only the BIA’s

decision issued on remand. See Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir.

2007).

I

The INA’s material support bar, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), is

construed by the BIA to have no implied exception for duress. When, as here,

the BIA construes “the statute which it administers,” we apply the familiar

principles of deference outlined originally in Chevron. INS v. Aguirre

‐ Aguirre,

526 U.S. 415, 424 (1999). “At the first step” of the two

‐ step Chevron framework,

we “determine whether Congress has directly spoken to the precise question at

issue,” and if it has, we “give effect to [Congress’s] unambiguously expressed

intent

. . . . If, however, the statute [is] ambiguous

. . . , we proceed to a second

step of analysis to [determine] whether the agency’s interpretation is

reasonable,” and if it is, “we must defer to it.” Adams v. Holder, 692 F.3d 91, 95

(2d Cir. 2012) (internal quotation marks and citations omitted).

The inquiry here begins at Chevron step two, because we have already

concluded that the material support bar is ambiguous as to whether duress is an

exception. 2 See Hernandez, 579 F. App ʹ x at 15 (citing Ay, 743 F.3d at 320). At

Chevron step two, we conclude that the BIA’s construction of the material

this opinion

‐‐ applies equally to claims for withholding of removal. See 8 U.S.C.

§§ 1231(b)(3)(B)(iv), 1227(a)(4)(B), 1182(a)(3)(B)(i)(I), ll82(a)(3)(B)(iv)(VI).

2 Hernandez argues that the statutory language favors her reading

unambiguously. That argument is defeated by stare decisis and law of the case.5 support bar is reasonable and therefore entitled to Chevron deference. In doing

so, we join several of our sister circuits in holding that the material support bar

does not contain an implied duress exception. See Sesay v. Att’y Gen., 787 F.3d

215, 217

‐ 18 (3d Cir. 2015); Barahona v. Holder, 691 F.3d 349, 355

‐ 56 (4th Cir.

2012); Annachamy v. Holder, 733 F.3d 254, 260, 267 (9th Cir. 2013), overruled on

other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (en banc);

Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1314 (11th Cir. 2013).

Hernandez argues that the BIA’s construction is not reasonable in view of

(1) the context, purpose, and legislative history of the INA; (2) United States

treaty obligations; and (3) the availability of a duress defense in criminal

proceedings. For the reasons that follow, we reject these arguments.

1. The BIA reasonably determined that the nonexistence of a duress

exception can be inferred from the language and design of the INA as a whole.

See Adams, 692 F.3d at 95. The text of the material support bar itself is “silent”

as to conduct taken under duress. 3 See Ay, 743 F.3d at 320. Elsewhere in the

INA, the bar to relief from removal for members or affiliates of communist or

totalitarian political parties contains an explicit exception for individuals who

can establish that their “membership or affiliation is or was involuntary.” 8

U.S.C. § 1182(a)(3)(D)(i)

‐ (ii). The omission of such an express exception in the

material support bar supports the inference drawn by the BIA that no exception

was intended. See INS v. Cardoza

‐ Fonseca, 480 U.S. 421, 432 (1987) (“[W]here

Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.” (internal

quotation marks and citation omitted)). Other circuits agree. See Alturo, 716

3 Hernandez argues that the bar’s text, which states that it applies to aliens

who “commit [] act[s]” that provide material support to terrorists, presumes

deliberate conduct. The point does not support her petition, however, because

deliberate conduct may be taken under duress. See Dixon v. United States, 548

U.S. 1, 6 (2006) (observing, in the criminal context, that the duress defense may

excuse conduct that would otherwise be punishable for satisfying all elements of

the offense).6 F.3d at 1314 (observing that the lack of an explicit duress exception in the

material support bar “stands in marked contrast to a neighboring provision in

the INA that includes an explicit involuntariness exception for aliens who have

been affiliated with a totalitarian party”); Annachamy, 733 F.3d at 261 (same);

Sesay, 787 F.3d at 222

‐ 23 (same). 4

The BIA likewise relied on the separate INA provision under which an

alien who “has not ‘ voluntarily and knowingly’ supported terrorist activities” may

apply for a discretionary “waive[r] [] of the material support bar” from “the

Secretary of State or [] the Secretary of Homeland Security”

‐‐ a waiver that

requires inter

‐ agency consultation. 5 Ay, 743 F.3d at 321 (emphasis added)

(quoting 8 U.S.C. § 1182(d)(3)(B)(i)). In enacting that provision

‐‐ “well after

[enacting] the material support bar”

‐‐ “Congress demonstrated its ability to

distinguish between voluntary and involuntary” conduct in the INA. Matter of

M

‐ H

‐ Z

‐ , 26 I. & N. Dec. at 761 n.4; see also Sesay, 787 F.3d at 223

‐ 24 (“Given that

the 2007 Amendments discussed duress waivers and voluntariness, and required

reporting on persons removed for having provided material support under

duress, Congress clearly legislated on the premise that the material support bar

otherwise applied to support given under duress.”); Annachamy, 733 F.3d at 262

n.8 (“Although the waiver provision was not enacted until 15 years after the

4 In urging otherwise, Hernandez observes that the so

‐ called “totalitarian

bar” was enacted years before the material support bar by a different Congress.

However, we “assume that Congress is aware of existing law when it passes

legislation.” Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (citation

omitted). Indeed, presuming congressional awareness is “particularly

appropriate here,” because Congress updated the totalitarian bar “in the same

legislation in which it created the material support bar.” Annachamy, 733 F.3d

at 261 n.7.

5 The Secretary of State may exempt an applicant after consulting with the

Attorney General and the Secretary of Homeland Security, and the Secretary of

Homeland Security may do so after consulting with the Attorney General and

the Secretary of State. See 8 U.S.C. § 1182(d)(3)(B)(i).7 creation of the material support bar, the waiver provision is still relevant in

determining the earlier congressional intent.”).

2. Hernandez argues that a material support bar without an implied

duress exception is incompatible with the non

‐ refoulement obligation of the 1976

United Nations Protocol Relating to the Status of Refugees (the “Protocol”), to

which the United States is a signatory. That argument appears to suggest that

the Protocol is self

‐ executing: it is not. See Yuen Jin v. Mukasey, 538 F.3d 143,

159 (2d Cir. 2008). In any event, the BIA recognized that the absence of an

implied duress exception to the material support bar is consistent with the

United States’s obligations under the Protocol.

“The Protocol incorporates by reference Articles 2 through 34 of the [1951]

United Nations Convention Relating to the Status of Refugees [(the

‘Convention’)],” Aguirre

‐ Aguirre, 526 U.S. at 427, and Article 33.2 of the

Convention provides that non

‐ refoulement may not “be claimed by a refugee

whom there are reasonable grounds for regarding as a danger to the security of

the country in which he is,” Convention, art. 33.2, reprinted in 19 U.S.T. 6223.

Moreover, “the determination of refugee status under the 1951 Convention and

the 1967 Protocol

. . . is incumbent upon the Contracting State in whose territory

the refugee finds himself.” Cardoza

‐ Fonseca, 480 U.S. at 439 n.22 (quoting

Office of the United Nations High Commissioner for Refugees, Handbook on

Procedures and Criteria for Determining Refugee Status 1 (ii) (Geneva, 1979)).

Therefore, “[u]nder the Protocol and Convention, Congress is free to decide that

an alien who provided material support to a terrorist organization, even if under

duress, is a danger to the security of the United States.” Annachamy, 733 F.3d

at 266.

3. Hernandez argues that an implied duress exception to the material

support bar is compelled by the pervasive availability of duress as a defense in

the criminal law. However, a deportation proceeding “is not a criminal

proceeding

. . . [,] and the full trappings of legal protections that are accorded to

criminal defendants are not [] constitutionally required in deportation

proceedings.” Dor v. Dist. Dir., INS, 891 F.2d 997, 1003 (2d Cir. 1989) (citation

omitted). It was reasonable for the BIA to deem the criminal defense of duress8 inapposite because ineligibility for relief from removal under the material

support bar is not premised on criminal liability. See Annachamy, 733 F.3d at

260 n.6 (“[An] alien ʹ s

. . . [acts in] support [of a]

. . . terrorist organization need

not [give rise to] criminal[] liab[ility] for the material support bar to apply.”); see

also Negusie v. Holder, 555 U.S. 511, 526 (2009) (Scalia, J., concurring) (observing

that the existence of the duress defense in criminal cases is irrelevant to the

interpretation of a bar to relief from removal under the INA because an “order of

deportation is not a punishment for a crime” (quoting Fong Yue Ting v. United

States, 149 U.S. 698, 730 (1893))).

II

Hernandez argues in the alternative that, given the BIA ruling, the

discretionary waiver system authorized under 8 U.S.C. § 1182(d)(3)(B)(i) is the

sole means by which an alien may obtain a duress exception to the material

support bar, and that the government thus violates due process because that

system does not afford aliens sufficient procedural safeguards. See Burger v.

Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).

Aliens for whom the waiver system may later become necessary still have

a full and fair opportunity to have their claims for asylum or withholding of

removal first heard and adjudicated by an immigration judge and the BIA, see

id., and it is through that adequate process that aliens may be deemed ineligible

for relief if they are found to have provided material support to terrorists, see 8

U.S.C. § 1182(a)(3)(B)(iv)(VI). The system that Hernandez challenges “afford[s]

[these aliens] additional process,” Yuen Jin, 538 F.3d at 157 (emphasis added), by

allowing them to make a showing of involuntariness, which the Executive may,

in its “sole [and] unreviewable discretion,” deem deserving of a waiver, see 8

U.S.C. § 1182(d)(3)(B)(i). However, aliens have no constitutionally

‐ protected

“liberty or property interest” in such a discretionary grant of relief for which

they are otherwise statutorily ineligible. See Yuen Jin, 538 F.3d at 156

‐ 57

(collecting cases); cf. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)

(“[A] benefit is not a protected entitlement if government officials may grant or

deny it in their discretion.”). There is therefore no merit to Hernandez’s due9 process challenge to either the denial of her waiver application or to the waiver

system in general.

For the foregoing reasons, the petition for review is DENIED. Any stay of

removal that the Court previously granted in this petition is VACATED, and any

pending motion for a stay of removal in this petition is DISMISSED as moot.1 D RONEY

, Circuit Judge

, concurring:

I agree that the material support for terrorism bar to asylum and

withholding of removal does not contain a duress exception. I write separately to

address whether the discretionary waiver to the material support bar complies

with the obligations of the United States under international law, both in this

case and more broadly. In my view, it is not clear that the waiver system meets

these obligations without additional information from the Department of

Homeland Security (DHS); indeed, I have serious concerns that it does not.

The United States is a signatory to the 1967 United Nations Protocol

Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. 6577

(1968) ( ʺ the Protocol ʺ ), which re

‐ incorporated the main provisions of the U.N.

Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150.

Under the Protocol, signatory states may not deport an otherwise

‐ eligible

refugee or asylee unless the state has “reasonable grounds for regarding [the

refugee] as a danger to security of the country in which he is.” Protocol art. 33.2.

This “national security exception” places limits on expelling individuals who can

otherwise establish their eligibility for asylum by showing that their “life or

freedom would be threatened on account of

. . . race, religion, nationality,

membership [in] a particular social group or political opinion” if returned to

their country of origin. Id. art. 33.1. The government contends that the material

support bar does not violate this restriction because the Protocol “did not define

what constitutes a ‘danger to the security of the country,’ [and thus] it was left to

Congress to set the parameters of that exclusion.” Resp’t Br. at 35. However, the

treaty’s language, as well as the statute and its legislative history, make clear that

Congress did not intend to allow DHS to remove otherwise

‐ eligible asylees who

do not present genuine security threats to the United States—a description that

seems very likely to apply to Hernandez, and perhaps, others like her.

First, the plain language and structure of the Protocol demonstrate that a

state may expel only asylees who present true security threats to the United

States. See Swarna v. Al

‐ Awadi

, 622 F.3d 123, 132 (2d Cir. 2010) (“In interpreting a

treaty, it is well established that we begin with the text of the treaty and the

context in which the written words are used.” (alteration and internal quotation2 marks omitted)). Specifically, the Protocol requires reasonable grounds to deem an

individual a security threat. Protocol art. 33.2. The United Nations Handbook on

Procedures and Criteria for Determining Refugee Status, which federal courts

have often used to interpret the Protocol, 1 supports interpreting this clause to

place significant restrictions on a signatory state’s ability to deport otherwise

‐ eligible asylees. See United Nations High Commissioner for Refugees (UNHCR),

Handbook on Procedures and Criteria for Determining Refugee Status ¶¶ 140

‐ 63

(Geneva 1979) (“the Handbook”). The Court’s opinion here cites the Handbook

to support its conclusion that the determination of refugee status is left to

signatories to the Protocol, slip op. at 7, but elsewhere the Handbook also

specifies the limited conditions under which states may deny refugee status or

expel a refugee, s ee UNHCR Handbook ¶¶ 140

‐ 63. In specifying these conditions,

the Handbook indicates that a signatory state may expel an otherwise

‐ eligible

asylee only where that individual presents a serious threat to the country’s

security. See also UNHCR, Background Note on the Application of the Exclusion

Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees 5

(Geneva 2003) (“Article 33(2) has always been considered as a measure of last

resort,

. . . justified by the exceptional threat posed by the individual—a threat

such that it can only be countered by removing the person from the country of

asylum.”). The fact that the Protocol is not self

‐ executing, see Yuen Jin v. Mukasey

,

538 F.3d 143, 159 (2d Cir. 2008), does not mean that we may disregard the

Protocol’s language. 2

1 See INS v. Cardoza

‐ Fonseca

, 480 U.S. 421, 438

 39 (1987) (“In interpreting

the Protocol’s definition of ‘refugee’ we are further guided by the analysis set

forth in the Office of the United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for Determining Refugee Status (Geneva

1979).); INS. v. Aguirre

‐ Aguirre

, 526 U.S. 415, 427 (1999) (consulting Handbook to

interpret Protocol).

2 While the Protocol may permit states to determine how to implement its

terms, the Protocol’s text establishes a baseline for what constitutes a security

risk serious enough to justify denying asylum to an otherwise

‐ eligible applicant.

Thus, this Court should look to these words in resolving the issues raised by this

case. See Murray v. Schooner Charming Betsy

, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 2083 Second, domestic case law and Congress’s actions support this

interpretation of the Protocol. As the Supreme Court has noted, the United States

codified its obligations under the Protocol when Congress passed the 1980

Refugee Act. Sale v. Hatian Ctrs. Council, Inc.

, 509 U.S. 155, 177–78 (1993). Part of

the Act incorporated Article 33.2’s protection into U.S. law, using language

virtually identical to that used in the Protocol. See 8 U.S.C. § 1231(b)(3)(B)(iv)

(preventing a grant of withholding of removal where “there are reasonable

grounds to believe that the alien is a danger to the security of the United States”).

The Third Circuit has interpreted this “national security exception” to prevent

removal unless there is probable cause to believe that an otherwise

‐ eligible

asylee poses an “actual” and “non

‐ trivial” threat to national security. Yusupov v.

Att’y Gen.

, 518 F.3d 185, 201

 04 (3d Cir. 2008); see also id. at 204 (noting that the

language “‘danger to the security of the United States’ includes an inherent

seriousness requirement”). 3

The question is whether the discretionary waiver system, as currently

implemented, satisfies this standard. On the one hand, there is some basis to

conclude that the waiver approach meets the Protocol’s requirements and that

Congress exercises meaningful oversight over the system to ensure compliance

(1804) (“[A]n act of Congress ought never to be construed to violate the law of

nations if any other possible construction remains

. . . .”). Indeed, the Supreme

Court has consulted the Protocol’s text on various occasions to help interpret the

meaning of the U.S.’s asylum and withholding of removal law. See, e.g.

, Sale v.

Hatian Ctrs. Council, Inc.

, 509 U.S. 155, 179

 87 (1993); Cardoza

‐ Fonseca

, 480 U.S. at

438

 39.

3 Yusupov involved review of a case from the Attorney General that

interpreted 8 U.S.C. § 1231(b)(3)(B)(iv). Matter of A–H–

, 23 I. & N. Dec. 774 (2005).

In that case, the Attorney General had similarly concluded that this section

requires probable cause to believe that an individual may pose a non

‐ trivial

threat to national security. Id. at 788–89. Applying Chevron deference, the Third

Circuit differed from the Attorney General only in that the Court determined an

asylee must “ actually pose a danger to the United States.” Yusupov

, 518 F.3d at

201 (emphasis added).4 with its purpose and U.S. treaty obligations. In 2005, Congress amended the bar

for “engaging in terrorist activities” to allow the Secretary of DHS to waive the

bar in his or her sole discretion. See Emergency Supplemental Appropriations

Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No.

109

‐ 13, § 104, 119 Stat. 231, 309 (codified at 8 U.S.C. § 1182(d)(3)(B)). As part of

that law, Congress mandated that the Secretary report to certain congressional

committees regarding how frequently DHS invoked the discretionary authority.

8 U.S.C. § 1182(d)(3)(B)(ii). Using this authority, the Secretary created a waiver

system for certain individuals who provided material support under duress. See,

e.g.

, Exercise of Auth. under Sec. 212(d)(3)(B)(i) of the Immigration and

Nationality Act, 72 Fed. Reg. 26138

‐ 02 (May 8, 2007). In December 2007, Congress

enacted additional reporting requirements regarding discretionary waivers for

duress cases. See Consolidated Appropriations Act, 2008, Pub. L. No. 110

‐ 161, §

691(e), 121 Stat. 1844, 2365. Congress acted in 2007 after many refugee and asylee

advocates (as well as members of Congress) voiced concern about the

implementation of the 2005 waiver authority and the material support bar’s

unfortunate consequences in many cases. See The “Material Support” Bar: Denying

Refuge to the Persecuted?”: Hearing before the Subcomm. on Human Rights & the Law,

Senate Comm. on the Judiciary

, 110th Cong. 1

 186 (Sept. 19, 2007).

However, the facts of this case, the nature of the discretionary waiver

process, and the limited public information available regarding the waiver

prevent me from concluding that the waiver system necessarily complies with

the Protocol; indeed, these issues leave me with serious concerns that at least in

some cases, the waiver system does not comply with our treaty obligations and

Congress’s intent to create an effective waiver system. First, the record in

Hernandez’s case does not suggest that the United States faces an actual threat

from this asylum applicant. There is no dispute that Hernandez was a

“successful businesswoman” in Colombia who provided food to members of

FARC 4 every three months for a period of two years following a series of FARC

4 FARC is the Spanish acronym for the Revolutionary Armed Forces of

Colombia, a guerilla organization at the center of Colombia’s internal conflict for

decades. See June S. Beittel, Cong. Research Serv., RL 43813, Colombia: Background

and U.S. Relations

, 2

 8 (2017). FARC and the Colombian government signed a5 threats against her. Matter of M

‐ H

‐ Z

, 26 I. & N. Dec. 757, 758 (2016). However, in

early 1999, Hernandez stopped providing assistance to FARC, and instead

housed Colombian police officers in her hotel. Appellate Record 96. FARC once

again began threatening Hernandez, and in March 2000, they attacked her

hometown, burning down Hernandez’s store and hotel. Id. Hernandez was later

taken to see a FARC commander, who pointed a gun at her head, threatened her

family, and ordered her to stop assisting “the police and politicians in her town.”

Id. at 97. After continuing to receive threats, Hernandez fled Colombia for the

United States in 2001. Id. The U.S. government placed her in removal

proceedings, and eventually, the immigration judge—following a full, contested

hearing

 determined “that, but for the material support bar, [Hernandez] would

be eligible for asylum based on her past persecution by the FARC.” 26 I. & N.

Dec. at 759; Appellate Record 203.

Nothing about this undisputed history suggests that Hernandez is a

security threat to this country. Indeed, DHS did not deny Hernandez a waiver on

security grounds or express doubt that she had acted under duress. Rather, DHS

denied her a waiver only because she failed to “fully disclose, in all relevant

applications and interviews with U.S. Government representatives and agents,

the nature and circumstances of each provision of material support.” Pet’r Br. at

50, No. 11

‐ 31 (2d Cir.), ECF No. 90

. This failure to disclose violated the DHS

‐

created “threshold requirement” that a waiver applicant disclose certain

information about the material support she provided in order to be eligible for a

waiver. See 72 Fed. Reg. at 26138. Yet as I detailed above, under the Protocol,

the United States may only deport an asylee based upon the security threat she

presents to this country. 5

peace accord in 2016, under which FARC has disarmed. Id. at 11, 13

 15.

However, these very recent developments occurred after the administrative

record in this case was developed. See 8 U.S.C. § 1252(b)(4).

5 Significantly, Hernandez is not alone, which increases my concerns. In

the Third Circuit case addressing this issue, DHS denied a waiver to an

individual who provided material support under duress to a rebel group in

Sierra Leone by moving the group’s equipment and goods. Sesay v. Att’y Gen

, 7876 This leads me to my second concern. In my view, the fact of Hernandez’s

denial—after the immigration judge determined that she was likely to face

persecution if returned to Colombia—raises serious concerns that the

discretionary waiver process is not effective given the few protections that the

waiver process provides. See Islam v. Gonzales

, 469 F.3d 53, 55 (2d Cir. 2006)

(detailing procedural protections in formal removal proceedings). It may well be

that a discretionary waiver system and its lack of administrative or judicial

review best balances the need for our Executive Branch to safeguard national

security while ensuring that some applicants who do not present a genuine

security risk may obtain asylum and withholding of removal. For example, some

cases might involve sensitive information about terrorist organizations such as

ISIS that pose (or have posed) serious threats to U.S. national security. These

cases may require secrecy of the waiver interviews and reasons for the waiver

denials to protect sources or methods of overseas intelligence gathering.

However, the need for such secrecy does not seem so clear in this case involving

FARC, which has not presented a security threat to the United States for quite

some time, if ever. 6 As Hernandez’s experience seems to suggest, in practice this

discretionary waiver system also allows DHS to make its own credibility

determinations, without the protections afforded in removal proceedings before

the immigration court. See 72 Fed. Reg. at 26138; see also Burger v. Gonzales

, 498

F.3d 131, 134

‐ 35 (2d Cir. 2007) (noting procedural protections in asylum and

withholding of removal).

F.3d 215, 217

 18 (3d Cir. 2015); id. at 223 n.7. The individual provided this

support after repeatedly refusing to join the group as a rebel and after

imprisonment and repeated beatings. Id. at 218. Similarly, in the Fourth Circuit’s

case addressing this issue, an asylum applicant permitted FMLN guerillas in El

Salvador to use his house for cooking after the FMLN previously killed the

applicant’s father and cousin. Barahona v. Holder

, 691 F.3d 349, 351

‐ 52 (4th Cir.

2012). DHS also denied a waiver in that case. Id. at 355 n.8.

6 See Beittel, Colombia: Background and U.S. Relations at 2

 8, 11, 13

 15

(summarizing the history of Colombia’s internal conflicts and recent

developments).7 DHS’s regulations and the limited information available on the waiver

process underscore these procedural concerns. As mentioned above, to obtain

the waiver, an applicant must “[p]ose[] no danger to the safety and security of

the United States.” 72 Fed. Reg. at 26138. This requirement essentially concedes

that many individuals to whom the material support bar applies are not an

“actual” and “non

‐ trivial” threat to U.S. national security. Yusupov

, 518 F.3d at

201

 04. Absent a grant of a discretionary waiver, denying these non

‐ dangerous

applicants asylum or withholding would violate the terms of the Protocol (so

long as there are no other grounds for denial). See id. ; Protocol Art. 33.2.

Furthermore, the current waiver process does not appear to provide a “full and

fair opportunity [for an applicant] to present her claims” or to respond to the

government’s reasons for denying the waiver. Burger

, 498 F.3d at 134. An agency

memorandum providing internal guidance to the agency provides some

structure to this process, but also suggests that the applicant’s only participation

in the waiver process takes place in an interview focused on the details of the

applicant’s material support. See Memorandum of Jonathan Scharfen, Deputy

Director, to DHS Officials (May 24, 2007), https://hsdl.hsdl.org/?view&did=21273.

Finally, the limited public statistics available to evaluate the waiver system

further underscore my concerns and those of the panel in Ay v. Holder

, 743 F.3d

317, 321 (2d Cir. 2014). For example, in fiscal year 2014—the only year with

publicly available data—DHS processed only nineteen waivers for asylum

applicants in the United States. 7 U.S. Citizenship & Immig. Servs., Report on the

Secretary’s Application of the Discretionary Authority Contained in Sec.

212(d)(3)(B)(i) of the INA 2 (2015). 8 Of these, DHS provided only four waivers

7 Many more waivers were processed for refugees outside the United

States.

8 At oral argument, the government indicated that this report

 which only

contains information on the number of waivers granted

 was not originally

intended to be publicly available. According to the government, an outside

organization obtained and released a copy of the report. The report is now

available on the Internet.8 for material support provided under duress to Tier I or Tier II terrorist

organizations—the category into which FARC falls. Without more information

(e.g., how many individuals in asylum proceedings DHS considers each year for

a waiver), these results are difficult to assess. Nevertheless, the fact that DHS

awards few waivers for asylum cases raises concerns that the process may be

inadequate to comply with the Protocol. In light of each of these concerns, I join

the other members of this Court who have observed that “the relief that [the

discretionary] waiver offers appears to be limited,” Ay

, 743 F.3d at 321; indeed, it

is possible that the relief may be so limited that it does not comply with the

Protocol in certain cases.

Nothing in this case suggests that Hernandez represents a genuine threat

to U.S. national security. Perhaps DHS has information demonstrating otherwise,

and perhaps the waiver system ensures compliance with international law in

every case. Courts would need additional information to reach the conclusion

that the material support bar complies with the Protocol’s requirements. Here, all

the administrative record reflects is a Colombian businesswoman who acted

under extreme fear and duress to protect her life and her family’s life by

providing foodstuffs to a guerilla organization located only in the highlands of

Colombia. This same woman also assisted the Colombian police, the very people

FARC often targeted. Indeed, DHS’s denial of Hernandez’s waiver did not even

suggest she is an actual security threat. If she is in fact not a threat, then I would

urge the government to reconsider Hernandez’s denial—to ensure that this case

and others comply with the U.S.’s international obligations under the Protocol.